GILLIE v. ESPOSITO et al

Filing 11

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 2/26/16. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DONTA TYRONE GILLIE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-3704 (JBS-JS)

v.
STEVEN ESPOSITO, et al.,

OPINION
Defendants.

APPEARANCES:
Donta Tyrone Gillie, Plaintiff Pro Se
#42367-037
FCI Loretto
P.O. Box 1000
Loretto, PA 15940
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Donta Tyrone Gillie’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), (Complaint, Docket Entry 1), and
motion for nunc pro tunc service (Docket Entry 7). At this time,
the Court must review the complaint, pursuant to 28 U.S.C. §§
1915 and 1915A to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which
relief may be granted, or because it seeks monetary relief from
a defendant who is immune from such relief. For the reasons set

forth below, the Court concludes that the complaint will be
dismissed without prejudice for failure to state a claim.
II.

BACKGROUND
Plaintiff brings this civil rights action against

Defendants Steven Esposito, Pradip Patel, and Abigail Lopez de
Lasalle in their individual capacities as employees of the
Bureau of Prisons (“BOP”). The following factual allegations are
taken from the complaint and are accepted for purposes of this
screening only. The Court has made no findings as to the truth
of Plaintiff’s allegations.
Plaintiff is a convicted and sentenced federal prisoner
currently confined at FCI Loretto, Pennsylvania. Plaintiff
states that on February 3, 2013, while he was detained at FCI
Fort Dix in New Jersey, he saw Esposito, a physician’s
assistant, for a “chronic care encounter.” (Complaint ¶ 2).
Plaintiff had been experiencing pain in his wrist and told
Esposito he believed it was broken. (Id. ¶ 3). Esposito examined
Plaintiff’s wrist and told him it was not broken. He told
Plaintiff to purchase a brace and over-the-counter pain
medication to treat the pain and swelling. (Id. ¶ 4). He further
indicated to Plaintiff that the pain and swelling should
decrease over time if Plaintiff followed the instructions.
(Id.).

2

Plaintiff questioned the diagnosis as Esposito had not
performed an x-ray. (Id. ¶¶ 4-5). Esposito then became “agitated
and began screaming at [Plaintiff] that ‘[Plaintiff] was no
doctor,’ that [Esposito] ‘would determine if [Plaintiff’s] wrist
was broken’” and ordered Plaintiff to leave before Plaintiff
could see his physician, Dr. Patel. (Id. ¶ 5). Although the
encounter form documents the wrist pain, Plaintiff asserts it
does not reflect the seriousness of his pain or the fact he told
Esposito he believed it was broken, (id. ¶ 6).
Plaintiff followed Esposito’s advice and purchase pain
medication and a wrist brace. (Id. ¶ 7). His wrist continued to
hurt, so he returned to medical for further care on May 2, 2013.
(Id. ¶ 8). Esposito examined Plaintiff’s wrist and recommended
an x-ray. (Id. ¶ 9). The x-ray was taken the next day and showed
a “nondisplaced scaphoid waist fracture” in Plaintiff’s left
wrist. (Id. ¶ 10). Dr. Patel reviewed the x-ray report and
recommended that Plaintiff consult with orthopedics. (Id. ¶ 11).
Dr. Winfred Williams examined Plaintiff on May 21, 2013.
(Id. ¶ 13). He recommended Plaintiff have surgery and warned him
that “due to delay between the injury and the proper diagnosis,
even with corrective surgery, [Plaintiff] would likely have
permanent damage to [his] wrist, thereby preventing [him] from
ever regaining the wrist’s full range of motion.” (Id. ¶ 14).
Plaintiff underwent surgery on July 22, 2013, which included
3

taking a bone graft and bone marrow from his hip for his wrist.
(Id. at 15).
After surgery, Plaintiff was returned to his cell instead
of being reassigned to a first floor room or being placed in the
medical observation rooms. (Id. ¶ 16). He was not given any pain
medication. (Id.). The next day he was issued a wheelchair, but
did not get a first floor pass until four days later. In the
meantime, he was required to climb to the second floor three
times a day for meals. (Id. ¶ 17). The prison moved him back to
the second floor on September 6, 2013, even though his first
floor pass did not expire until August 6, 2014. (Id. ¶ 18).
After filing administrative grievances with the BOP, Plaintiff
filed this complaint on June 10, 2014.
Plaintiff asserts that as a result of defendants’ actions,
he has suffered unnecessary pain and suffering and lost the full
range of motion in his wrist. He seeks damages in the amount of
$1,500,000.
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
4

employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915
and 1915A because Plaintiff is proceeding in forma pauperis and
is a prisoner seeking redress from a government official, and
under 42 U.S.C. § 1997e as his complaint concerns prison
conditions.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,1 the complaint must
allege “sufficient factual matter” to show that the claim is

1

“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
5

facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Although
pro se pleadings are liberally construed, pro se litigants
“still must allege sufficient facts in their complaints to
support a claim.”

Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

245 (3d Cir. 2013) (citation omitted).
B. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
In Bivens, the Supreme Court created a federal counterpart
to the remedy created in 42 U.S.C. § 1983. See Egervary v.
Young, 366 F.3d 238, 246 (3d Cir. 2004) (“Bivens actions are
simply the federal counterpart to § 1983 claims brought against
state officials”), cert. denied, 543 U.S. 1049 (2005). In order
to state a claim under Bivens, a plaintiff must allege: (1) a

6

deprivation of a right secured by the Constitution and laws of
the United States; and (2) that the deprivation of the right was
caused by a person acting under color of federal law. See Couden
v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006); see also Collins v.
F.B.I., Civ. No. 10–3470, 2011 WL 1627025, at *6 (D.N.J. Apr.
28, 2011) (“The Third Circuit has recognized that Bivens actions
are simply the federal counterpart to § 1983 claims brought
against state officials and thus the analysis established under
one type of claim is applicable under the other.”).
IV. ANALYSIS
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976). In order to set forth a cognizable claim for a violation
of his right to adequate medical care, an inmate must allege:
(1) a serious medical need; and (2) behavior on the part of
prison officials that constitutes deliberate indifference to
that need. Id. at 106. Deliberate indifference to a prisoner's
serious medical needs may be found where the prison official (1)
knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) intentionally delays
necessary medical treatment based on a non-medical reason; or
(3) deliberately prevents a prisoner from receiving needed
medical treatment. See Pierce v. Pitkins, 520 F. App'x 64, 66
7

(3d Cir. 2013) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999)). “However, ‘[w]here a prisoner has received some
medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which
sound in . . . tort law.’” DeJesus v. Corr. Med. Servs., Inc.,
574 F. App'x 66, 68-69 (3d Cir. 2014) (quoting United States ex
rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir.
1979)) (alteration in original).
Plaintiff’s complaint at its core is a dispute over the
adequacy of the medical treatment he received at Fort Dix. He
alleges Esposito violated his Eighth Amendment rights by
“refusing to order an X-ray of the Plaintiff’s wrist on February
2, 2013. This refusing was despite the Plaintiff’s wrist was
swollen [sic] and he complained of intense pain. When his
diagnosis was questioned, Esposito displayed unprofessional
behavior and ordered the Plaintiff to leave,” thereby preventing
Dr. Patel from examining the wrist. (Complaint at 5). Although
he calls Esposito’s actions a “refusal” to provide medical care,
the facts as stated in the complaint indicate there was medical
treatment. Esposito examined the wrist, concluded it was not
broken, and recommended a brace and over-the-counter pain
medication. (Id. at ¶ 4). The facts suggest Esposito did not
order an x-ray at that time because he did not think it was
8

medically necessary, not for a non-medical reason. See Pierce,
520 F. App'x at 66. Plaintiff’s complaints about the adequacy of
treatment and Esposito’s alleged unprofessionalism are
negligence and medical malpractice claims, not constitutional
violations. “[A] complaint that a physician has been negligent
in diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff has failed
to allege sufficient facts to warrant an inference of deliberate
indifference by Esposito; therefore, he has failed to
sufficiently allege an Eighth Amendment violation. The Eighth
Amendment claims against Esposito must be dismissed at this
time.
Plaintiff further alleges Dr. Patel and Ms. de Lasalle,
Fort Dix’s Clinical Director, are liable for failing to
supervise Esposito and failing to supervise and train the
medical staff, respectively. Supervisors may liable for
unconstitutional actions by their subordinates if the
supervisors “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” Barkes v. First
Corr. Med. Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on
other grounds sub nom Taylor v. Barkes, 135 S. Ct. 2042 (2015)
(internal citations and quotation marks omitted). Failure to
9

train and failure to supervise claims are subcategories of
policy or practice liability. Id.
In order to proceed on his failure to supervise claim,
Plaintiff must first identify a specific supervisory policy or
practice that the supervisor failed to employ, and then allege
that: “(1) the policy or procedures in effect at the time of the
alleged injury created an unreasonable risk of a constitutional
violation; (2) the defendant-official was aware that the policy
created an unreasonable risk; (3) the defendant was indifferent
to that risk; and (4) the constitutional injury was caused by
the failure to implement the supervisory practice or procedure.”
Id. at 317 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989)). In addition to failing to adequately allege an
underlying constitutional violation, Plaintiff has not
identified a policy that Dr. Patel or Ms. Lasalle failed to
employ or pled facts that would enable this Court to find on a
preliminary basis that the other factors have been meet.2 This
claim must therefore be dismissed.
Failure to adequately train subordinates can generally only
constitute deliberate indifference if the failure has caused a

2

Plaintiff allegations that Dr. Patel failed to follow BOP
policy by not “properly” reviewing Esposito’s first report or
examining Plaintiff himself, (Complaint at 5), do not rise to
the level of a constitutional violation and are more
appropriately brought in a negligence or medical malpractice
action.
10

pattern of violations. Connick v. Thompson, 563 U.S. 51, 62
(2011); Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520
U.S. 397, 409 (1997). In addition to failing to sufficiently
plead that his Eighth Amendment rights were violated, Plaintiff
has not alleged there has been a pattern of violations of
prisoners’ right to medical care due to misdiagnoses by
physician’s assistants such that Ms. de Lasalle would have been
on notice that corrective action was necessary. Connick, 563
U.S. at 62 (“Without notice that a course of training is
deficient in a particular respect, decisionmakers can hardly be
said to have deliberately chosen a training program that will
cause violations of constitutional rights.”). The possibility
“that in certain situations, the need for training ‘can be said
to be “so obvious,” that failure to do so could properly be
characterized as “deliberate indifference” to constitutional
rights’ even without a pattern of constitutional violations,” is
narrow, Thomas v. Cumberland Cnty., 749 F.3d 217, 223 (3d Cir.
2014) (quoting City of Canton v. Harris, 489 U.S. 378, 390 n.10
(1989)), and does not apply in the instant matter as the
allegations in the complaint fail to rise to the level of a
constitutional violation. Plaintiff has not set forth facts that
sufficiently allege a violation of the Eighth Amendment by
defendants. The complaint must therefore be dismissed at this
time.
11

To the extent the complaint could be construed as raising
claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671–2680, those claims must also be dismissed at this
time. The FTCA “operates as a limited waiver of the United
States's sovereign immunity[,]” White–Squire v. U.S. Postal
Serv., 592 F.3d 453, 456 (3d Cir. 2010), and a FTCA plaintiff
may sue only the United States, CNA v. United States, 535 F.3d
132, 138 n.2 (3d Cir. 2008) (“The Government is the only proper
defendant in a case brought under the FTCA.”). Plaintiff has not
named the United States as a defendant, nor has he submitted
documentation indicating that he presented the offending agency,
in this case the BOP, with notice of his claims. The FTCA notice
must include a “sum certain” demand for monetary damages, and
“[b]ecause the requirements of presentation and a demand for a
sum certain are among the terms defining the United States's
consent to be sued, they are jurisdictional.” White–Squire, 592
F.3d at 457 (citing United States v. Sherwood, 312 U.S. 584, 587
(1941)). These requirements cannot be waived. Id. (citing
Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971)).
In the absence of this documentation, the Court cannot determine
whether it has jurisdiction over any potential FTCA claims. As
such, any FTCA claims cannot proceed at this time.
Generally, “plaintiffs who file complaints subject to
dismissal under [§ 1915] should receive leave to amend unless
12

amendment would be inequitable or futile.” Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). As it is not
clear that amending the complaint would be futile, Plaintiff may
move for leave to file an amended complaint.3 Any motion to amend
must be accompanied by a proposed amended complaint, which shall
be subject to screening by this Court. If Plaintiff seeks to
pursue a malpractice claim under the FTCA, his amended complaint
will have to demonstrate that he has submitted the required
administrative tort claim notice with the Bureau of Prisons;
that is required as a jurisdictional prerequisite for any FTCA
case, as explained above. Plaintiff should note that when an
amended complaint is filed, the original complaint no longer
performs any function in the case and cannot be utilized to cure
defects in the amended complaint unless the relevant portion is
specifically incorporated in the new complaint. 6 Wright, Miller
& Kane, Federal Practice and Procedure 1476 (2d ed. 1990)
(footnotes omitted). An amended complaint may adopt some or all
of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must

3

As the complaint is being dismissed, Plaintiff’s motion for
nunc pro tunc service is dismissed as moot. In the event
Plaintiff files a motion for leave to amend, the time to serve
Defendants pursuant to Federal Rule of Civil Procedure 4 will
not begin to run unless and until the Court grants that motion
and permits the amended complaint to proceed.
13

be clear and explicit. Id. To avoid confusion, the safer course
is to file an amended complaint that is complete in itself. Id.
V.

CONCLUSION
For the reasons stated above, the complaint is dismissed

without prejudice for failure to state a claim. Plaintiff’s
motion for nunc pro tunc service is dismissed as moot. Plaintiff
may move for leave to file an amended complaint within 30 days
of the date of this Opinion and Order.
An appropriate order follows.

February 26, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

14